Last Updated: September 2011
1.1 Acceptance. Please read the Agreement carefully and print off or save a copy for your records. In order to use the Website, you must first agree to be bound by the Agreement. If you do not agree to be bound by the Agreement, you are not authorized to use the Website. Furthermore, you are not authorized to use the Website and may not accept the Agreement if you are not eighteen (18) years of age or older and of the age of majority in your state of residence.
1.2 Modification. We reserve the right to modify the Agreement at any time. You agree to review the Agreement periodically to be aware of such modifications. You further agree that your continued use of the Website shall be deemed to be your conclusive acceptance of any modified version of the Agreement. We will indicate that changes to the Agreement have been made by updating the date indicated after “Last Updated” at the beginning of the Agreement. If you do not agree to abide by any modified version of the Agreement, then you are not authorized to use the Website.
2.1 Content and Submitted Content. Operator offers you the opportunity to submit certain Content (as hereinafter defined) to us via the Website in connection with certain interactive Website features (“Submitted Content”). You acknowledge and agree that (i) Operator has no obligation to use or respond to any Submitted Content; (ii) the provision of Submitted Content by you in no way imposes any other obligation on Operator, whether of confidentiality, attribution, or otherwise, and Operator shall not be liable for any use or disclosure of any Submitted Content; (iii) all Submitted Content submitted by you shall be accurate and shall not violate the copyright, trademark, patent, trade secret or other intellectual property right of any third party; (iv) you will not provide any Submitted Content which contains third party names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, trade dress, and service names (collectively, “Trademarks”) or other third party materials; (v) you hereby waive any and all claims (including, without limitation, claims based upon invasion of privacy, defamation, false light, or right of publicity) arising out of any alteration, distortion or other use of your name, image or likeness or that of any third party which is included in any Submitted Content (including without limitation your photograph or the photograph of a third party); (vi) you will not post any Submitted Content to the Website that was previously published or which is otherwise unoriginal (except for incidental portions in the public domain); and (vii) Submitted Content may be subject to size and usage limitations, and you are responsible for adhering to such limitations. “Content” means various materials, including without limitation all text, comments, icons, images, messages, tags, links, photographs, audio, video and other content.
2.2 Quality and Review of Submitted Content. You acknowledge and agree that Operator does not and shall not have any obligation to review Submitted Content, and therefore we do not guarantee the accuracy, integrity or quality of Submitted Content and we cannot assure that harmful, inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable Submitted Content will not appear on the Website. Notwithstanding the foregoing or anything to the contrary herein, you acknowledge and agree that Operator has the absolute right to review and monitor all Submitted Content in our sole discretion, and that Operator reserves the right to alter, edit, refuse to use or remove any Submitted Content, in whole or in part, for any reason or for no reason, and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, Registrants, Visitors or service providers, all in our sole discretion. You agree that you shall immediately notify Operator in writing of any objectionable Submitted Content or other Content appearing on the Website.
2.3 Grant of License to Submitted Content. By submitting Submitted Content to us, you automatically grant, and represent and warrant that you have the right to grant to Operator, a non-exclusive, perpetual, irrevocable, sub-licensable (through multiple tiers), assignable, fully paid, royalty free, worldwide license to use, copy, modify, adapt, publish, make, sell, create derivative works of or incorporate into other works such Submitted Content, derive revenue or other remuneration from, communicate to the public, distribute (through multiple tiers), perform or display such Submitted Content (in whole or in part) and/or to incorporate such Submitted Content in other works in any form, media, or technology now known or later developed, and to grant and authorize sublicenses of the foregoing through multiple tiers of sub-licensees, including the right to exercise the copyright, trademark, publicity, and any other rights over any of the materials contained in such Submitted Content for any purpose, including for purposes of advertising and publicity on the Website and elsewhere. Operator shall not be limited in any way in its use, commercial or otherwise, of any such Submitted Content, and you hereby waive any moral rights in, or approval rights to, such Submitted Content. Further, we reserve the express right to incorporate any Submitted Content posted to the Website or otherwise conveyed by any Visitor to Operator into any further work, in any medium now or hereafter known, without prior consent or review, and without attribution or payment of any royalty or fee whatsoever.
3. Intellectual Property.
3.1 Copyright. The Website contains various Content that is protected by the copyright laws of the United States and/or other jurisdictions. Other than for Submitted Content submitted by you, you acknowledge and agree that (i) as between you and Operator, all right and title in and to all Content belongs to Operator; and (ii) except for that information which is in the public domain or for which you have been given express written permission by Operator, no Content may be sold, copied, reproduced, republished, uploaded, displayed, posted, transmitted, distributed, modified, publicly performed, used in any derivative works based thereon or otherwise used for any public or commercial purpose without the prior written consent of Operator or, where applicable, our licensors. However, you may print copies of materials on the Website for your personal, noncommercial use only, provided that you must keep intact all copyright, Trademark, and other proprietary notices appearing therein.
3.2 Copyright Agent. The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied and posted on the Website in a way that constitutes copyright infringement, please provide our copyright agent with the following information: an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Website; your address, telephone number, and e-mail address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon Operator actual knowledge of facts or circumstances from which infringing material or acts are evident. Operator’s copyright agent for notice of claims of copyright infringement can be reached as follows:
Name: Drew Patrick, Esq.
Address: 460 Park Avenue South, 10th Floor, New York, NY 10016
Telephone: (212) 284-9620
Fax: (480) 393-4224
We suggest that you consult your legal advisor before filing a notice with Operator’s copyright agent. You should note that there can be penalties for false claims under the DMCA. Operator will, in appropriate circumstances and to the extent plausible, terminate the right of Visitors or Registrants who infringe the rights of copyright holders to interact with certain portions of the Website.
3.3 Trademarks. Unless otherwise indicated, all Trademarks appearing on the Website are Operator’s trademarks or those of our licensors, sponsors, suppliers or other third parties as indicated and are protected by the trademark laws of the United States and/or other jurisdictions. You may not use, copy, reproduce, republish, distribute or modify any Trademarks in any way, including, but not limited to distribution of Content for advertising or publicity or otherwise, without our prior written consent or the consent of such third party trademark holder, as applicable. Unless you have been expressly authorized to do so in writing by Operator or the appropriate third party, you agree that you will not use any Trademark of any individual or entity in a way that is likely or intended to cause confusion about the owner or authorized user of such Trademark.
3.4 Removal of Notices. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and Trademark notices) which may be affixed to or contained within any Content, and that you will abide by all such notices.
3.5 Name, Image, and Likeness. Without limiting any other provisions of the Agreement, you agree that if any of your Submitted Content includes the name, image or likeness of any person, you represent and warrant that you have the exclusive and irrevocable right to exploit, and to permit others to exploit, the name, image and likeness of such person, and to use any photograph and/or other image of such person, however reproduced or depicted, in your sole discretion, and free and clear of any obligation of compensation to you or anyone else, and you hereby transfer all such rights to Operator.
4. Usage Restrictions. In addition to the other terms and conditions in the Agreement, you agree not use the Website in any manner that:
(a) is designed to interrupt, destroys or limit the functionality of, any computer software or hardware or telecommunications equipment (including without limitation by means of software viruses or any other computer code, files or programs);
(b) interferes with or disrupts the Website, and/or services connected to the Website, or otherwise interferes with operations or services of the Website in any way;
(c) infringes any copyright, trademark, trade secret, patent or other right of any party, exploits the name, image or likeness of any person, or defames or invades the publicity rights or the privacy of any person, living or deceased (or impersonates any such person);
(d) consists of any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; or
causes us to lose (in whole or part) the services of our internet service providers or other suppliers;
(e) links to materials or other content, directly or indirectly, to which you do not have a right to link;
(f) is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially or ethnically offensive, or otherwise objectionable, as determined by Operator in its sole discretion;
(g) violates, or encourages anyone to violate, this Agreement or any other policies appearing on the Website; or
(h) violates, or encourages anyone to violate, any applicable local, state, national, or international law.
You further agree that you shall not (and you shall not permit any person to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the software underlying the Website or any portion thereof, unless such activity is expressly permitted by law, or unless you have been specifically granted such right in writing by Operator.
5. Links; Third Party Websites. The Website may provide links to third party websites that we believe may be of possible interest to you. Because we have no control over such websites, you acknowledge and agree that we do not endorse such websites and are not responsible or liable, directly or indirectly, for (i) the availability of such websites, (ii) any content, data, text, software, music, sound, photographs, video, messages, tags, links, advertising, services, products, or other materials on or available from such websites, (iii) your participation, correspondence or business dealings with any third party found on or through the Website regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, which are solely between you and any such third party, or (iv) any damage or loss caused or alleged to be caused by or in connection with your interaction with any such third party. Your use of any website linked to from the Website is subject to the policies and procedures of the owner of such website, and you acknowledge and agree that your use of all such websites is subject to such terms and not to the terms and conditions of the Agreement. You understand that by using any third party website linked to from the Website, you may be exposed to content or other materials that are offensive, indecent, defamatory or otherwise objectionable.
6.1 Applicability. This Section 6 applies to information we may collect through the Website, but does not apply to information collected through other sources or from third parties.
6.2 Personal Information we collect. We may collect Personal Information in a number of ways in connection with the Website, including, but not limited to, as follows:
(a) When you submit a media inquiry through the Website contact form;
(b) When you subscribe to our mailing list through the Website contact form and opt-in to receive information from us;
(c) When you contact us via email; and
(d) When you voluntarily provide Personal Information to us for any other purpose.
6.3 Uses of your Personal Information.
(a) For website analytics and trend reporting;
(b) To respond to questions and comments;
(c) To carry out specific actions you may request;
(d) To improve and enhance the overall Website experience for all the Website users; and
(e) In connection with the exploitation of any rights granted pursuant to Section 2.3 above.
6.4 Disclosure of your Personal Information. We may disclose to third parties Personal Information that we collect as follows:
(a) Business transfers: If a third-party acquires all or substantially all of our assets, your Personal Information, aggregated information, and any other information that we have collected in connection with the Website may be transferred to such third-party as part of our business assets. Also, if any bankruptcy or reorganization proceeding is brought by or against us, all such information may be considered one of our assets and may be sold or transferred to third parties.
(b) Disclosure of Personal Information for legal purposes and for our own, and others’ protection: We reserve the right to share your Personal Information with third parties if required to do so by law, or if we believe such action is necessary in order to: (1) conform to the requirements of the law or comply with legal process served upon us; (2) protect or defend our legal rights or property, the Website, or our users; or (3) investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, or violations of any of our company policies.
(c) Service Providers: If we use third-party service providers to perform certain services on our behalf, such as processing, storing, maintaining and transmitting data, processing and fulfilling e-mail and other promotional campaigns, and providing marketing assistance, web analytics, and data analysis, we may provide your Personal Information to these third-party service providers when the information is necessary for them to perform their duties.
(d) Disclosure in connection with the exploitation of Licensed Rights: In the event we exploit any rights in your Submitted Materials, we may attribute such Submitted Materials to you using your Personal Information.
6.7 Information posted to our Website. If you choose to use a social networking feature available through the Website, you should be aware that, unless otherwise expressly specified, any Personal Information or other information you post can be read, collected, or used by other users of the Website, and could be used to send you unsolicited messages or used in an otherwise unauthorized manner. We cannot be responsible for any Personal Information you choose to post through those means and we recommend careful consideration before you post such information.
6.11 Security of your Personal Information. We strive to protect the security and integrity of all Personal Information provided to this Website. However, due to the inherent nature of the Internet as an open global communications vehicle, we cannot guarantee that information, during transmission through the Internet or while stored on our system or otherwise in our care, will be absolutely safe from intrusion by others, such as hackers. We will have no liability for disclosure of your information due to errors or unauthorized acts of third parties during or after transmission. In the unlikely event that we believe that the security of your Personal Information in our possession or control may have been compromised, we may seek to notify you of that development. If a notification is appropriate, and, to the extent we have your e-mail address, we may notify you by e-mail. You consent to our use of e-mail as a means of such notification.
7. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT THE WEBSITE IS PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE”. NEITHER OPERATOR, NOR ANY OF ITS AFFILIATES, SUBSIDIARIES AND EACH OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, LICENSORS, OR ASSIGNS (COLLECTIVELY, THE “OPERATOR PARTIES”) ASSUMES ANY RESPONSIBILITY FOR YOUR USE OF THE WEBSITE INCLUDING WITHOUT LIMITATION ALL CONTENT PROVIDED THROUGH THE WEBSITE, AND MAKES NO PROMISES, GUARANTEES, PREDICTIONS OF SUCCESS OR ANY CLAIMS REGARDING YOUR USE OF THE WEBSITE OR ANY OF OUR PRODUCTS. NONE OF THE OPERATOR PARTIES SHALL HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY LOSS, DAMAGE, OR ADVERSE CONSEQUENCE ALLEGED TO HAVE HAPPENED OR WHICH HAS HAPPENED, DIRECTLY OR INDIRECTLY, THROUGH YOUR USE OF THE WEBSITE OR ANY CONTENT OR SUBMITTED CONTENT APPEARING THROUGH THE WEBSITE. NONE OF THE OPERATOR PARTIES MAKES ANY GUARANTY OF THE ACCURACY, CORRECTNESS, USEFULNESS OR COMPLETENESS OF THE WEBSITE, AND IS NOT LIABLE FOR LOSSES OR DAMAGES ALLEGED TO ARISE FROM OR ARISING FROM, ANY PRODUCTS OR CONTENT APPEARING ON THE WEBSITE OR ANY ERRORS OR OMISSIONS ALLEGED TO ARISE FROM OR ARISING FROM THE USE OF OR YOUR RELIANCE ON ANY SUCH PRODUCTS OR CONTENT. SPECIFICALLY, THE OPERATOR PARTIES DISCLAIM (I) ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE REGARDING THE WEBSITE AND ANY PRODUCTS, AND (II) ALL OTHER WARRANTIES WHICH ARE NOT EXPRESSLY GRANTED HEREIN. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCE WILL ANY OF THE OPERATOR PARTIES BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE ALLEGED TO ARISE OR ARISING OUT OF (I) YOUR INTERACTION WITH ANY PERSON WITH WHOM YOU COMMUNICATE THROUGH THE WEBSITE, (II) ANY SUBMITTED CONTENT, INCLUDING WITHOUT LIMITATION THE OFFENSIVE, INDECENT, DEFAMATORY, INFRINGING OR OTHERWISE OBJECTIONABLE NATURE OF ANY SUBMITTED CONTENT TO WHICH YOU ARE EXPOSED, (III) YOUR USE OF OR RELIANCE ON ANY PRODUCT OFFERED FOR SALE OR OTHERWISE DISPLAYED ON THE WEBSITE, OR (IV) ANY OTHER USE BY YOU OF THE WEBSITE.
8. LIMITATION OF LIABILITY.
8.1 IN NO EVENT SHALL ANY OF THE OPERATOR PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE (INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT OR SUBMITTED CONTENT OBTAINED FROM OR THROUGH THE WEBSITE), WHETHER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, OR ANY OTHER INTANGIBLE LOSS OR DAMAGE. IN NO EVENT SHALL ANY OF THE OPERATOR PARTY’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE EXCEED THE LESSER OF (I) THE CUMULATIVE AMOUNT OF PAYMENTS MADE TO OPERATOR BY YOU (IF APPLICABLE) OVER THE SIX (6) MONTH PERIOD PRECEDING ANY CLAIM UNDERLYING SUCH LIABILITY, OR (II) ONE THOUSAND DOLLARS ($1,000).
8.2 THE LIMITATIONS ON THE LIABILITY OF ANY OPERATOR PARTY TO YOU IN THIS SECTION 8 SHALL APPLY WHETHER OR NOT ANY SUCH OPERATOR PARTY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN SECTIONS 7 OR 8 HEREOF MAY NOT APPLY TO YOU.
9. Representations and Warranties. You represent and warrant that (i) you accept and will abide by the terms of the Agreement; and (ii) the posting of Submitted Content by you does and shall not violate any terms and conditions to which you are bound under the Agreement, any other applicable agreement, or any applicable laws or regulations.
10. Indemnification. You agree to indemnify, defend and hold harmless each of the Operator Parties from all claims, demands, actions or damages (actual and consequential, direct and indirect) of every kind and nature, including without limitation reasonable attorneys’ fees and disbursements arising out of your breach or alleged breach of any of your representations, warranties, covenants or obligations under the Agreement or your violation or alleged violation of any law or regulation. You shall have the right and duty to assume the control of the defense thereof with counsel reasonably acceptable to each such Operator Party; provided, however, that each such Operator Party may take part in and/or to fully assume such defense, at its own expense in its sole discretion, after you assume the control thereof. You agree not to enter into any settlement that any of the Operator Parties believes is adverse to its interests without receiving the prior written consent of each such party. None of the Operator Parties shall not be obligated to participate in any settlement that such party reasonably believes would have an adverse effect on such party’s business interests.
11. No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and Operator by the Agreement.
12. Governing Law; Jurisdiction. You acknowledge and agree that the Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, excluding conflict of laws provisions thereof. You hereby agree to the personal and exclusive jurisdiction by and venue in the courts located within the County of New York, State of New York, and to receive service of process through certified mail or by other means sanctioned by law, and the parties expressly waive any claim of improper venue and any claim that such courts are an inconvenient forum.
13. Timely Filing of Claims. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE INCLUDING WITHOUT LIMITATION YOUR USE OF THIS WEBSITE, MUST BE FILED BY YOU PURSUANT TO SECTION 12 ABOVE WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IS CLAIMED TO HAVE ARISEN.
14. Assignment. You agree not to resell or assign your rights or obligations under the Agreement. You agree that the Agreement may be automatically assigned by Operator, in its sole discretion, to a third party.
15. Validity; Section Headings. If any provision of the Agreement is held to be invalid by a court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Agreement, which shall remain in full force and effect. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
16. Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You agree that if Operator does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Operator has the benefit of under any applicable law), this will not be taken to be a formal waiver of Operator’s rights and that those rights or remedies will still be available to Operator
17. Survival. The provisions of the Agreement will survive termination or expiration to the extent necessary to carry out the intentions of you and Operator.